Posted
by
Unknown Lamer
on Wednesday February 06, 2013 @12:01PM
from the everyone's-favorite-law dept.

First time accepted submitter ios and web coder writes "From the article: 'A dizzying story that involves falsified medical research, plagiarism, and legal threats came to light via a DMCA takedown notice today. Retraction Watch, a site that followed (among many other issues) the implosion of a Duke cancer researcher's career, found all of its articles on the topic pulled by WordPress, its host. The reason? A small site based in India apparently copied all of the posts, claimed them as their own, then filed a DMCA takedown notice to get the originals pulled from their source. As of now, the originals are still missing as their actual owners seek to have them restored.' This is extremely worrying. Even though the original story is careful not to make accusations, I will. This sure smells like a 'Reputation Defense' dirty trick."

If this can happen it points to the fact that the entire DMCA process is utterly broken and open to abuse.

No proof is required on the side of the claimant, but the accused can immediately lose their stuff.

This is a side effect of a process which was designed by content owners to get stuff taken down with minimal effort and red tape. It has the effect of random idiots being able to take down stuff without any oversight.

What needs to happen is the content owners need to have some higher burden of proof that they are the copyright holders, and that there's real infringement going on.

Sorry, clearly the most important thing is that content producers which actually generate revenue can continue doing so the moment a DMCA request is actioned. Money does not want or have time for your petty notions such as 'proof' or 'oversight'.

Every moment of delay collecting such lawful claptrap is money out of my (ahem, I mean) content producer's pocket and lost taxes out of your government coffer, Dear congressman/Senator.

The problem is that takedown requests are made under penalty of perjury. That means a DA or other state prosecutor must file the charges, not the victim. If you're a large business and you make a false takedown request for profit no prosecutor is going to bother, but if you are a politically inconvenient protestor using the system to demonstrate the flaws you're much more likely to get arrested.So we need some Anonymous people from outside US jurisdiction to have fun with this.

That was exactly my reaction, too. Let's quit worrying about assholes from trollville.com or HBO DMCA-ing itself.What we need, aside from a major overhaul of copyright law, is some laws that make it absolutely illegal to demand file takedowns until after a judgement has been made in a court of law verifying the material is infringing.The intersection of US politicians (and judges) who are (a) not completely corrupt and (b) have a clue what software, networks, and copyright are about, is probably zero, so I'm not holdiing my breath here.

We've had some judges slapping down patent trolls and copyright trolls in recent months, so hope is not lost for the system. The DMCA needs to go, but something with judicial oversight might actually work.

The only purpose of the DMCA though is to bypass the courts and due process. Rather than pass another law to make the DMCA process require courts and due process, you'd be better off just getting rid of it.

Bullshit. The purpose of the safe harbor provisions of the DMCA (which is what this is about) is to allow sites to host user-supplied content at all. How many of these sites do you think would exist if every time one of their 'users' put up some copyright infringing material the site had to go defend themself in court?

DMCA notices do not bypass courts or in any way eliminate 'due process'. You have no 'right' to have your stuff hosted on YouTube, wordpress, or anywhere else. No 'due process' or court is

Your freedom of the press buts zero onus on anyone else. You have the right to publish what you want, nobody has the responsibility to give you the means to do so. Or do you think every book publisher, newspaper, magazine, TV station, etc is somehow required to publish everything anyone sends them?

Oh, and another thing: you are not the only one with the right to freedom of the press. The actual 'press' has the, say it with me, freedom to decide what they will and will not publish.

Nobody is required to honor any takedown notices, there is no such law that requires that. Hosts honor takedown notices because it is to their benefit. Therefore, any host who wants to operate in your prefered way is completely free to do so right now. Of course, that means that these hosts will be driven out of business by the inevitable landslide of lawsuits and judgements against them.

Your proposal means there are basically two choices: a) hosts are always responsible for any copyright infrigement by

That is already the law. Here is the relevent text (USC 17 section 512):

(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section—(1) that material or activity is infringing, or(2) that material or activity was removed or disabled by mistake or misidentification,shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Part (1) is making a false claim (ie not in good faith), part (2) is making a false counter-notice. Punishment is exactly the same in both cases.

People in countries outside the jurisdiction of the United States should immediately start issuing as many DMCA notices for *AA works and sites as possible. Flood the system. Let them lost access to their own work using the legal framework they've created. The tail may be long, but the bite still hurts.

People in countries outside the jurisdiction of the United States should immediately start issuing as many DMCA notices for *AA works and sites as possible. Flood the system. Let them lost access to their own work using the legal framework they've created. The tail may be long, but the bite still hurts.

And when we're done, copy that site, and then issue takedown notices for the site that bulk copied all the stuff from the *AA.

No proof is required on the side of the claimant, but the accused can immediately lose their stuff.

A few survivors of home invasions have reported that the killers break in and shout, "Police! This is a raid! Get on the floor with your hands behind your back!" or something similar before executing their victims.

Now there's an example of a hopelessly broken authentication system - that the same government sets up something similar for duplication of text is hardly surprising.

Detroit had a rash of fake cop cars pulling people over and robbing them. At one point they just said if a cop wants to pull you over, drive to a police station.

So is the penalty for fraudulently making a DMCA claim essentially zero? Atheists on YouTube get harrassed when religious people lie that they own the atheist's videos, then any response requires paperwork saying the atheist's real name and address, which is what some of these angey, murderous people are looking for. No legal penalties for such lies?

So is the penalty for fraudulently making a DMCA claim essentially zero? No legal penalties for such lies?

Who's donating to the re-election campaigns, the MPAA or the Brights?

Pretending like the government cares about justice or fairness, in spite of all evidence to the contrary, just because our grade school teachers told us some mythical interpretations of history, is what gets us to this situation.

And pretty much nobody cares. Where are the mass protests against no-knock raids (remember when proper serving of a warrant was required by the Constitution?) What happened to the mobs on the Mall protesting the wars and the USAPATRIOT Act?

Knowing how the home invaders behave, the only reasonable response by anybody who is informed is to shoot anybody who enters the home making this claim. The odds are probably in your favor. Better to be tried by twelve than carried by six, and all that. And that appears to be the only way for ordinary citizens to change the incentive equation (much to my dismay).

Similarly, nobody is going to fix DMCA (at least not unless a currency crisis changes everything). If the atheists are being harassed by some religious group via DMCA, the only options available to them at this point are retaliation by the same means or public shaming, if they can pull it off (but who will report the story, the big corporate news that files DMCA takedowns?).

You have no idea how much I wish this weren't the situation, but take away the thin veneer and this is the way things are.

What needs to happen is for people to get their own server. A false DMCA claim is about the easiest (bad) thing to deal with when your stuff is hosted on someone else's server. All you have to do is challenge the claim, and your stuff can go back up.

Compare that to what happens if there is a server outage and you don't have backups, or if Wordpress just decides they don't like you. In those cases, there is NOTHING you can do. If you want to be safe, have your own server or at a minimum make backups.

Ideally, all these cracks in DMCA would cause Congress to repeal the Act, but I don't see that happening. But perhaps at the very least it could be modified to discourage the most blantant abuses. Since foreign companies are somewhat difficult to prosecute in the US, they should be required to deposit an escrow before serving a DMCA request, which would get surrendered to the respondent if the request is found to be without merit. Or perhaps they should be made to file through a US proxy who agrees to ass

exactly why we need a small army of people doing exactly this to a multitude of sites on a regular basis. It will become abundantly clear that the DMCA take down process is flawed and is doing more harm than good.

We really have to start requiring the DMCA takedown notice sources to bring the burden of proof, or this will just become business as usual. Particularly as you don't even have to be resident in the country to abuse the system.

Alternatively, HUGE fines for incorrect takedowns and use of the perjury provisions for submitting an incorrect takedown notice need to be assessed / used. Actually, in a just world, this would be in addition to requiring burden of proof from the takedown notice source.

It doesn't matter if anyone does that. The RIAA and MPAA homepages aren't hosted by third parties that accept takedown notices.

And that is how we rather trivially see our way clear of this problem. Are you people forgetting that the WordPress software is open source? You can run it on any Linux machine, with trivial ease. Are you people forgetting that we are all peers on the Internet? By the very nature of the protocol, you CAN NOT be shut down. Host your own content! When a bogus DMCA takedown shows up, laugh at it. Put it up on your site and ridicule it.

The Pirate Bay has showed us the way. Follow.

The only thing missing is automated deployment to additional servers to handle the load if a random crappy little blog suddenly starts picking up a lot of hits. So, build that feature in to WordPress. Bittorrent has already demonstrated that people are perfectly willing to give a little of their own bandwidth in exchange for something they value. Free, automated, instant, demand-driven mirroring is something valuable. If the price is having your own connection participate in a service swarm occasionally, people will be fine with that.

Take control of your own content. "The Internet interprets censorship as damage and routes around it." Here's the route. Make this a feature of the Freedom Box [freedomboxfoundation.org].

This would create a huge paradigm shift. I love it! Merging HTTPS and BitTorrent protocols to host content that can't be removed unless all parties agree (if even then) would really make virtually impossible to do anything once something has been posted. Adding encryption and/or anonymity features couldn't hurt either. For the final touch, post the source code for it on the very protocol it created.

Actually, the key here, is that it's not missing from their website. It's missing from Wordpress' website. They don't have a website of their own. If they did, then they (not Wordpress) would have been the one who received the DMCA notice, and the decision to pull or keep the "infringing" article would have been in the hands of someone with actual knowledge of the situation, rather than a frightened fold-by-default middleman.

Could this also be a case of anti-DMCA activism, where someone is fabricating this scenario just to demonstrate how abusable the system is?

No, it's an Indian medical researcher who hired a reputation management company [dukechronicle.com] to downplay the fact that he was thrown out of Duke for lying on his resume and falsifying cancer research results. [bizjournals.com]

Of course if it's not, I'm sure this will give some people that kind of idea.

There is no need for activism in that area. Using a DMCA request for trying to take down content that affects your reputation is a very common tactic. Most of the time, it doesn't do anything because the content is posted by back up after a little while.

In this case however, the reputation management company was smart enough to post duplicated content first. This means that the primary content may be dinged automatically by the google bot as a plagiarizer if it thinks the content was posted in India first, and so the google ranking of that content may be permanently affected as a result. Hopefully, the google bot is smart enough to figure out what truly happened.

Either way, because of the Streisand effect, I wouldn't want to be that Anil Potti [wikipedia.org] right now.

This is absurd. It clearly looks like the Reputation Firm hired by this guy works with some nameless organization in India. For WordPress to honor this DMCA take down request blindly makes me more reluctant to ever use them. Sure I see blog posts hosted by them all the time but seriously why would a reputable organization (if you can call WordPress that) would remove the content without first checking with the blog owners or verifying the claims, then they are truly the bad guys here.

Sure I see blog posts hosted by them all the time but seriously why would a reputable organization (if you can call WordPress that) would remove the content without first checking with the blog owners or verifying the claims, then they are truly the bad guys here.

Because that's how they keep from getting sued themselves.

If they take down on request, they keep their safe harbour. If they ask for details or proof, they can become more involved than they'd like.

The system is set up to favor the claimants, with no consideration for any burden of proof other than "because I said so". Because the lobbyists who paid for this law wanted it that way.

But it completely goes outside of most legal things like due process and judicial oversight -- guilty until proven innocent.

I'm surprised this confusion still exists, the counter-notice puts the matter firmly back in the jurisdiction of the court system at only the cost of revealing the noticee's personal information so a lawsuit can proceed.

Which makes for a nice lovely way to get the real personal information of people on the internet. Why should someone be forced to identify themselves to you based on an unsupported claim?

Sorry, but I still think there should be some initial burden of evidence on the claimant -- but, as I've

For WordPress to honor this DMCA take down request blindly makes me more reluctant to ever use them.

This is standard operating procedure for every major website right now. Doing due diligence can land you in legal trouble with the DMCA. The industry wrote the law, why would they add a concept of checks and balances? That's something the congress would have to do, but that's not going to happen when the industry is there reminding them about how expensive elections are and now easy it is for a few major news outlets to pump up some other candidate to oust you in the primary. Many won't even need a reminder because that's how they got the seat in the first place.

I think you missed the point in the topic header "say it isn't so!" I realize that this is the case but again, the DMCA law is written to either remove or disable the content. That's what it says BTW, remove or disable. The latter for those ISPs/website operators who take a bit of time to at least give the content owners a chance to wrangle over the information or indeed take a quick look and say "hey, this takedown notice is BS." It's also worded specifically that if they don't act they may lose their liability protection under the DMCA. So yes, "ohh scary things will happen with lawyers. We may even get *gasp* another letter if we don't act in 5 minutes."

My point is that now this kind of case comes up, where we have a Researcher who is now going back trying to erase embarrassing things about himself via proxy and now you have hoards of folks in the third world ready to send DMCA letters to just let him do that. The DMCA is shameful, written by the entertainment industry. It's a travesty that laws passed (or lack thereof in the 112th congress) nowadays are just rubber stamped by legislators as "their own." There should be a DMCA for plagiarism of laws or at least "do you own work" should be the mantra rather than this endless supply of industry focused legislation that seems to be more and more prevalent in DC and in State Legislatures.

In the original issue here, WordPress which is almost synonymous for blogging took down damaging articles about proven research fraud. This is valuable and embarrassing information to subject and represents a distinct departure vs. printed news. So now if I post some code on a site, that shows an example on how to do something, I can have some nameless guy from India call my ISP and say that it's his and my stuff will disappear? Yeah deep down I knew that was a possibility (especially if I don't pay my ISP bill) but again, WordPress should have merely disabled the content, contact the owner and said "you have 7 days to let us know why we shouldn't delete your content/disable your site." That's allowable under the DMCA and it shows that the host of the content is trying to be reasonable to all parties involved.

The actual article is a bit sketchy on details - the *real* standard procedure is not 'blind takedown' -because blind takedown can land you in trouble on the 'defendant' side as well if not donecorrectly, and the host can end up being sued by the customer - instead,

Usually SOP for DMCAS goes like this*:

1) Recieve takedown request2) Notify party of recieved takedown request, wait some time period for counter-claim (usually 2 business days or similar)3) if no counter claim submitted by the customer within tim

What reputation? This guy is living in more denial than the GOP if he thinks his reputation is positive. This is like throwing a bucket of water after the house has already burned down, the embers have cooled and been cleared away and there's a McDonalds built where it used to be.

To me this indicates that DMCA claims need to have some sort of US presence; the only disincentive for abuse of the DMCA is the potential for lawsuits for invalid claims, if the claimant doesn't have a US presence then they're entirely free from reprisal. Leo Laporte has frequently mentioned that foreign companies spuriously claim copyright on his Youtube videos in order to run ads on his content.

Perhaps DMCA ought to even require registering for copyright as a minimum for filing take down notices.

I understand the need for something like the DMCA takedown process On the other hand there needs to be some level of balance such that filing a false DMCA takedown request has an appropriate consequence to whoever files such a fraudulent action. I'm thinking along the line of capital punishment for both whoever makes the faslse claim as well as their legal team and anyone else substantially involved. It would make people think twice about filing a false takedown.

You don't need capital punishment, just make the punishment in line with what the RIAA demands per CD worth of shared music. A few ten million dollar fines will probably slow down the false claims in a hurry.

The fact that DMCA requests must be honored from India, which is obviously outside the jurisdiction of any possible penalty, means that even the "everyone you know dies" sanction would fail to make a difference here.

While this is certainly outrageous behavior, could this lead to the demise of the DMCA?
If this practice becomes common, you can certainly see court challenges against the DMCA in the future. If the DMCA can be portrayed as taking away original speech, that would be a direct violation of the freedom of speech in the United States. All it would take is a court to determine that it does not sufficiently safeguard the First Amendment and it could be struck down. It could be re-written, but it wouldn't be as easy to mass issue takedown notices.
While I do acknowledge that there is a corporate mindset in the American judiciary, the First Amendment is a very explicit right and this would be an infringement on the property rights of the original creators.

* Abolish the Digital Millenium Copyright Act.
* Intellectual property should be taxed like real property. http://www.latimes.com/news/opinion/la-oew-weaver20feb20,0,1675278.story [latimes.com] It is an asset with a value, right? If you no longer make enough to pay your taxes on it, it goes to the state.
* Copyrights are supposed to be an incentive to create. One that lasts unto your grandchildren are a dis-incentive, because not only are you not creating any more once you are dead, neither are your descendants. Copyright should last half a working lifetime (20 years), so that you have to get off your ass and make new stuff.
* Someone who makes copies without permission should pay a fine, but it should be at the regular royalty rate for the item x copies made. So upload a song, it's iTunes price x number of downloads, with perhaps a factor of 3 penalty to discourage doing it, not $150,000 per copy.

"Reputation defense" on Wikipedia has become an issue.
Here's a wash cycle [wikipedia.org] on Wikipedia, carried out on behalf of Michael Milken, one of the notorious financial crooks of the 1980s. [nytimes.com] ("Biggest fraud case in the history of the securities industry." back in 1990.)
He has a self-admitted paid editor on Wikipedia editing his article to make him look good.

You have a no cost, remote way to claim ownership of something for some amount of time and profit from it and the only "undo" available to your victims involves a lengthy process which itself is only initiated after they've noticed that one of the things they created at some point in their careers which was somewhere on the net has had a DCMA takedown notice applied to it.

It's a scammer's paradise, the moreso since this is India which, with a billion people, we can say with utter confidence that even if

One of the major selling point of that wholly remarkable travel book, the Hitch Hiker's Guide to the Galaxy, apart from its relative cheapness and the fact that it has the words Don't Panic written in large friendly letters on its cover, is its compendious and occasionally accurate glossary. The statistics relating to the geo-social nature of the Universe, for instance, are deftly set out between pages nine hundred and thirty-eight thousand and twenty-four and nine hundred and thirty-eight thousand and twenty-six; and the simplistic style in which they are written is partly explained by the fact that the editors, having to meet a publishing deadline, copied the information off the back of a packet of breakfast cereal, hastily embroidering it with a few footnoted in order to avoid prosecution under the incomprehensibly tortuous Galactic Copyright laws.

It is interesting to note that a later and wilier editor sent the book backwards in time through a temporal warp, and then successfully sued the breakfast cereal company for infringement of the same laws.

I nearly learned the hard way years back that whenever you host a site anywhere, you need to make sure you have local backups. In my case, it was a web host who was "struck by a worm" that took their servers down for a week. The fix to the worm was: 1) reboot server, 2) apply patch, 3) reboot again. So a week+ to fix their servers seemed fishy to me. I was lucky and managed to access the SQL servers and get a local backup. Others weren't so lucky when the company just vanished a couple of weeks later.

I now have a few self-hosted WordPress sites. Of course, even these aren't immune to this kind of attack. If the reputation management company stole my content and tried to knock my post offline, my host could go in and delete my site. Of course, if they did, I'd just restore my backup and my post would be back online. (I'd then leave that host, of course.)

6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Serious question. I thought that this part of the DMCA takedown notice exists precisely to prevent abuse. Why haven't I *EVER* heard of it being enforced?

A law should not be capable of victimizing others. The DMCA, through mistake or malice can and often is used in ways which harm people.

Let's not focus on who is doing it. There will always be many thousands out there who are willing to take advantage of bad law. Take down one and two more will spring up. It's the law which is the problem. It's time it was repealed.

now what you have to hope is those indian doctors/engineers didnt do the same on their exams

Sadly as somebody who is a CS graduate student at a university whose CS graduate program is dominated by Indian students, I can tell you that this is absolutely the case. They see no problem with cheating, even after the professor has told them that he knows they are cheating and explains the consequences. Doesn't matter if it was homework, projects or tests they always cheat.

In my experience it's only the top caste Indians that habitually cheat. They feel it's their right. In some American schools that might be all the Guptas.

Back in India their parents would send a lower caste boy to school with their son as a 'helper'.

Over hear the trick is to hire the former 'helpers' not the 'Top Brahmen'. I flush them out during interviews by pretending to be a Eurotrash blue blood. That always gets the brahmen to out themselves, with talk of how important their family is. I then don't hire them.

This may be an isolated indecent but my company recently hired a Cisco engineer that had quite a few recent Cisco certifications and was previously employed doing router and switch work for a similar sized company. By the third day it was obvious he was TOTALLY clueless, he had no concept of routing or switching. We got rid of him a few days later when he took down our test lab with an STP issue. His initial interview with us about a month earlier was via a video conference at one of our remote US office

Nearly impossible in academia. I had an engineering class where a group (all non-Indians) handed in a paper they had lifted from a previous year's group. The TA recognized it, because it was his paper.

They failed the paper, but didn't fail the class. Too much red tape. It's nearly impossible to be flunked out for fraud in academia.

Which is why the Harvard Cheating Scandal [reuters.com] is so remarkable. They actually took it seriously. Of course, it was only a freshman class.

It's exactly the same in all the pre-med classes I took. The instructors had to go to great lengths to separate the Indian students on test days. There were numerous cases of where Indian students in one class of a professors would steal the exam during a test, and give it to students in a later class. The professors had a huge burden of extra work to come up with different exams for each individual class. The Indian students didn't seem to care or protest one bit about being singled out for cheating, a

I had that problem in my CS grad school as well. Half the students were Indians, and they seemed to be helping each-other a lot. So, half the TAs where Indian as well and that led to Indian students passing whatever they submitted (to be graded by TAs). For example I know for a fact that while I got a 90% for a project to do with queries of a given db database, an Indian girl got 100% for submitting a java program that instead of querying the db had simply hard-coded answers to the sample test queries...There were some great Indian students of course, but they were the minority (at least in that environment).Anyway, the great fun was a year or two after I finished. There was an Indian guy who was copying during a midterm. The professor caught him and gave him an F for the midterm. At the final, the guy needed a good grade I guess, so he tried to copy again. The professor catches him once more and tells him that he will get an F for the course (which is a big bummer if you were counting on financial aid), so this brilliant character turns and says "Why F just for me when all the others submitted the same course project". The professor retrieved the projects from the TAs and indeed there were some dozens of identical submissions... There was talk about expulsions, but in the end the students got an F in the class, and I guess some US professors realized not all cultures have the same academic customs (and possibly that you have to do some stuff yourself, not just drop everything to the TAs)...

Yes, it is well known that Indians are different from everyone else in that they are the only country with citizens willing to cheat on their exams. Elsewhere, cheating is so unusual we have to read Indian textbooks to understand what it means.

Elsewhere, cheating is so unusual we have to read Indian textbooks to understand what it means.

No...that wouldn't work, either. After all, all the Indian textbooks are copied from good, upstanding, published-in-the-good-old-USofA books, so they won't have anything about cheating in them, either...</sarcasm>

When any other country does this, Americans scream fascism and freedom -- and completely miss the fact their own government does it. Sorry, but this is Soviet era stuff, and most of it is supposed to be unconstitutional.

But, as long as American Idol keeps playing, Facebook and Twitter are online, and you can buy a jumbo sized meal at McDonald's nobody cares.

The real problem we should be focusing on is the "takedown first, ask questions later" approach.

But that is handled already. The site takes down the material and asks questions later, because that is exactly what they need to do to be involved in any copyright lawsuit. On the other hand, the lawmakers realised that this opens the door to mischief, and therefore sending a DMCA takedown notice when you are not the copyright owner or their agent is a criminal offence that can put you into jail. If India has similar laws to the USA, then there is a good chance that a request for extradition would be successful. If not, then these guys from India better never travel to the USA.

It's more like if France had a law against giving people the finger and you stood in France and gave the finger to someone in Switzerland and then the person in Switzerland sued you with France's law even though there is no such law in Switzerland.